The 2016 South China Sea Arbitration: A critical approach

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Heron_Derek_Final Thesis.pdf
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Harris Rimmer, Susan G

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Wiseman, Leanne G

Cassimatis, Anthony E

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2024-06-19
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Abstract

The South China Sea (SCS) has been an important region for many centuries - more recently - a number of littoral States have made or asserted property and sovereignty rights to various reefs, shoals and other insular features; generally in accordance with the United Nations Convention of the Law of the Sea (UNCLOS). Assertions of these rights have been motivated by a range of factors that include: prospective oil and gas reserves; locations of large fishery habitats; and the strategic importance of the SCS to international trade and commerce. This research has a specific focus upon the arbitral proceedings in the Permanent Court of Arbitration (PCA) between two important claimant States in the SCS, namely the Philippines and China. The research question seeks to examine the key property law submissions and findings in the Philippines v China arbitration awards, and applies a critical approach to re-examining some of the key Tribunal findings in both awards. Methodologies deployed in this research project are essentially two-fold. First, an orthodox doctrinal approach examines and critiques a number of these findings. Second, the progressive and critical Third World Approaches to International Law (TWAIL) and related bias critiques are also applied. The deployment of these methodologies provides critical insights and analyses which are then supplemented by commentaries drawn from the Chinese Society of International Law (CSIL) examinations of these awards. This research project aims to make an original contribution to existing literature and knowledge by applying TWAIL methods to examine and critique the Philippines v China arbitration awards specifically and the Law of the Sea (LOS) more generally. The literature review demonstrated a paucity of critical publications and the complete absence of any TWAIL analyses of these awards. There are a number of important outputs that flow from these critical approaches and the findings of this research. These relate specifically to the Tribunal's interpretative approaches applied to UNCLOS Articles 281, 283 and 298 on jurisdiction; Articles 13 and 121 regarding low tide elevations and islands; and the Tribunal's reasons for rejecting China's SCS historic claims within the Nine Dash Line (NDL). The interpretation and application of these articles and the rejection of China's NDL claims were the key legal outcomes from this arbitration. The implications of the Tribunal's findings reach well beyond the parties and the SCS region and now inform the global interpretation and application of some important UNCLOS related rights and interests.

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Thesis (PhD Doctorate)

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Doctor of Philosophy

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Griffith Law School

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The author owns the copyright in this thesis, unless stated otherwise.

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Subject

South China Sea

arbitration

claimant States

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